S.B. Sen, J.
1. This is a revision by the State of Madhya Pradesh against the order of the Additional Sessions Judge, Khandwa, setting aside the order of conviction of the non-applicant under Section 354, I.P.C., and quashing the entire proceedings as incompetent.
2. The facts of the case are that on 21-8-1955 Mst Jasso (P.W. 6) was in her bada some time in the afternoon. The accused jumped over the fence and tried to seduce her for intercourse. The prosecutrix Mst. Jasso repelled his advances, which made him furious. He caught hold of her and assaulted her with a stick. He fell her down on the ground forcibly, snatched her lugda and thereby made her naked. Her cries attracted her uncle who came to the spot. On seeing him, the accused fled away.
3. A report of this incident was made to the police and a challan was accordingly put up before the Magistrate, 2nd Class. The case was, however, transferred to Shri G. P. Pateriya, Judge Magistrate First Class, who convicted the accused under Section 354, I.P.C., and sentenced him to six months' rigorous imprisonment. In appeal, the learned Additional Sessions Judge held that the offence disclosed amounted to an offence of attempt to commit rape and therefore cognizance could not be taken by the Magistrate 2nd Class initially; and trial subsequently by the Magistrate 1st Class is also bad. The offence, according to him, was triable by the Court of Session and, therefore, the Magistrate had no jurisdiction to try it. The learned Additional Sessions Judge set aside the conviction of the accused, but recorded no opinion as to his guilt, keeping it open for the Court having jurisdiction to decide. The State has filed this revision petition against that order.
4. The question, therefore, is whether the order of the Additional Sessions Judge is bad and the case should be tried afresh.
5. The facts stated above are also mentioned in the first information report. The challan was out up by the police under Section 354, I.P.C. Admittedly, from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 317 : 173 ER 141 while summing up the charge to the jury, Justice Patterson observed :
'In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part.'
In Empress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill J., which are quoted below, are very pertinent :
'We believe that in this country indecent assaults are often magnified into attempts at rape, and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance.'
In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the dictum of Justice Patterson in the above cited case is followed I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.
6. A similar case was decided by Mirza and Broomfield JJ. of the Bombay High Court in Ahmed Asalt Mirkhan (Criminal Appeal No. 161 of 1930, D/- 12-8-1930 reported in Ratanlal's Law of Crimes. p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over 'her mouth to prevent her crying and placed his private parts against hers.
There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should he some action on the part of the accused which would show that he is just going to have sexual connection with her. In the Bombay case the cries of the girl desisted the accused. In the instant case the appearance of the uncle of the girl stopped him.
In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private part, For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first information report it was undoubtedly a case of an offence to commit rape so as to oust the jurisdiction of the trying Magistrate.
7. It appears the police were aware that to prove an offence of attempt to commit rape, there are many difficulties and in order to avoid any possible failure, they took the safest course. They therefore put up the challan under Sec. 354, I.P.C The Magistrate also agreed with that view and took cognizance of the offence. Therefore, the trial by the Magistrate was not bad. A Magistrate has jurisdiction to try a case for an offence which he feels that the accused, has committed. From the challan that was put up before him, the Magistrate had no doubt that the allegations fell under Section 354. I.P.C. Whether it was a more serious offence would depend on further circumstances, as already stated.
8. The result is that the revision petition is allowed and the case is remanded to the Additional Sessions Judge, Khandwa for decision on merits and other points not raised before me.
9. I must make it clear that my opinion is based on the first information report and the findings of the trying Magistrate. Whether the offence under Section 354, I.P.C., was actually committed is still open for argument before the appellate Court. If in the course of the discussion I have used any expression indicating that the accused has committed an offence, it will not bind the Additional Sessions Judge to come to a different finding.